Judge rejects parties’ motions in case of lawyer suing Florida Bar

The case of a Florida attorney who is challenging the state bar association's
rules on advertising will go to a final hearing after a federal judge recently
rejected both sides' motions seeking an early legal victory.

Orlando attorney Steven Mason sued the bar last December after it prohibited
him from including in his yellow-page ad that he had received the highest rating
for attorneys by a nationally recognized law directory.

However, the bar argues the ad violates an ethical rule prohibiting
“self-laudatory” advertising.

The rule provides: “A lawyer shall not make statements that are merely
self-laudatory or statements describing or characterizing the quality of the
lawyer's services in advertising or written communications; provided that this
provision shall not apply to information furnished to a prospective client at
that person's request or to information supplied to existing clients.”

Mason says the rule is unconstitutional and violates his First Amendment
free-speech rights. The bar says the rule serves several substantial interests,
including “ensuring that advertising solicitations directed to the lay public do
not contain information regarding attorneys which is potentially
misleading.”

Federal District Judge Kendall Sharp rejected both parties' motions for
summary judgment last week in Mason v. The Florida Bar without issuing a
written opinion. Sharp simply stamped “Denied” on the first pages of both
parties' motions.

The judge set a final hearing date for Dec. 1.

Mason said he was “surprised” by the judge's ruling because “the facts in the
case are basically undisputed.”

“The simple fact is that the bar's rule is arbitrary and discriminatory,” he
told the First Amendment Center. “The bar does not regulate
statements on the Internet the same way as they do print ads.”

Mason points to the biography of the Florida Bar's attorney, Barry Richard,
which is accessible on law firm Greenberg Traurig's Web site. Richard's
biography states that he is “recognized as one of Florida's leading First
Amendment and Media lawyers” and “his stature among his fellow lawyers is
reflected by the fact that he is retained by The Florida Bar to represent it in
major litigation.”

Mason says this shows a “clear double standard.”

However, Richard says there is a logical reason for the distinction between
statements in print and statements made on the Internet.

“The bar made a policy decision that material on the Internet that is beyond
a home page is not subject to the rule,” he told the First Amendment Center. “Internet home pages are subject to the
same rule. However, once someone goes beyond the home page that individual is
not being solicited, they are requesting information.”

Mason responded in court filings: “If the Bar's firm can put any information
it sees fit (unrestricted advertising) in the pages that follow its 'home page,'
maybe a disclaimer should be required; i.e., 'Surfer Beware—Unrestricted
Advertising Follows — Click at your own risk.' How is it that the Bar's law firm
can advertise and pat itself on the back in this manner and Mr. Mason cannot say
'the highest rating'? This is double standard. It harkens back to the old adage,
'The big dog always eats first.'”

Richard says the Florida Bar does not have a problem with Mason's ad in
particular, but the association does want to “maintain uniform standards.”
Otherwise, according to Richard, “the bar would have to make a subjective
decision in every single case.”

“This is not a major First Amendment issue. The bar has always been sensitive
to First Amendment issues,” he said. “You have to keep in mind that the Supreme
Court has always said that requiring additional information within reason is not
the same as prohibiting speech.”

Mason responds that the bar's arguments amount to “legal nonsense.”

“What is the difference between a yellow-page ad and the Internet ads?” he
asks. “The bar's rule is arbitrary. We are now fighting over three words — 'the
highest rating.' This policy simply favors the blue-blood law firms over the
solo practitioner.”

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.